Top

Other Australian Specialist Areas:
Australian Visa Cancellation

All immigrants to Australia should understand the circumstances in which a visa can be cancelled and the consequences of such a cancellation.

Overview of Australian Visa Cancellation

Prior to the Migration Reform Act 1992, the Department of Immigration had an unfettered discretion to cancel visas and temporary entry permits. Under the current legislation this power was replaced with a power to cancel visas for certain specified reasons.

The power to cancel a visa arises from:

Back to top

spacer

Cancellation under s.109
(Incorrect information or False document)

Incorrect information:

The Migration Act provides that the Minister may cancel a visa if the grant of the visa was based on incorrect information. The power to cancel in s.109 arises where the Department of Immigration considers that the holder of a visa who has been immigration cleared:

  • Either did not answer or answered incorrectly the questions on the application form or passenger card or otherwise in connection with a decision under sections of the Migration Act
  • Gave a false document to a decision maker
  • Failed to advise the Department if circumstances change so that an answer given in an application form, or information given, is no longer correct
  • Failed to notify an officer that an answer given or information given was incorrect when it was given

The Migration Act states that it does not matter whether or not the person knew that the information supplied was incorrect. The question of the person's knowledge of the falsity of a statement may well be relevant, however, to the exercise of the discretion to cancel.

False document:

A false document is one that the Department of Immigration reasonably suspects:

  • Was obtained because of a false or misleading statement, whether or not made knowingly
  • Is counterfeit or has been altered by a person without authority to do so
  • Claims to have been, but was not, issued for the person

The Department of Immigration has discretion to cancel the visa after considering any response by the holder and circumstances prescribed in the Migration Regulations. International human rights instruments are also relevant to the exercise of the discretion.

If a person's visa is cancelled under section 109 or 116, visas held by members of their family unit are also cancelled.

Click here to contact us in confidence.

Back to top

spacer

Cancellation under s.116

The primary grounds for cancellation of a visa under section 116 are:

  • The holder has not complied with a condition of the visa
  • Circumstances which permitted the grant of the visa no longer exist
  • The presence of the holder in Australia is, or would be, a risk to the health safety or good order of the Australian community

The Department of Immigration may cancel a visa if satisfied that these grounds exist. The procedure is that notice must first be given of the intention to cancel the visa and the holder given an opportunity to respond.

The former Immigration Review Tribunal (IRT) has held that this means that there is a discretion whether to cancel the visa once it is established that the grounds for cancellation exist.

There is no legislative guidance for the exercise of the discretion, although the Department of Immigration has policy guidelines, which set out matters to which decision makers should have regard. In addition to these matters, various international human rights instruments also provide relevant matters for decision makers to consider.

Section 116(3) provides that a visa must be cancelled in certain circumstances. These include the failure of a student to comply with condition 8202, which deals with the satisfaction of course requirements.

A permanent visa cannot be cancelled under s.116 if the holder has lawfully entered Australia. If the holder of a visa has not entered Australia the visa can be cancelled without notice on the grounds in s.116. Cancellation under this provision may be revoked unless the ground for cancellation is one for which the Department of Immigration must cancel the visa.

Click here to contact us in confidence.

Back to top

spacer

Cancellation of Business Visas under s.134

The power applies to any visa class with the words 'Business Skills' in its title, which at present includes visa subclasses 127, 128, 129, 130, 131, 840, 841, 842, 843, 844 and 845.

Cancellation of business visas and the cancellation of visas on character grounds (s.501) are reviewable by the Administrative Appeals Tribunal (AAT).

Back to top

spacer

Cancellation under s.501

Section 501 of the Migration Act contains grounds for the cancellation of a visa where the Department of Immigration is satisfied that the visa holder:

  • Would be likely to engage in criminal conduct in Australia
  • Would vilify a section of the Australian community
  • Represents a danger to the Australian community
  • Would incite discord in Australia
  • Is 'not of good character'

Back to top

spacer

Australian Immigration Law Offences

The Migration Act contains a series of offences in relation to entry into and remaining in Australia unlawfully and the making of decisions under the Act. They include the offences of:

  • Working in breach of a visa condition
  • Presenting false documents or making false or misleading statements to an officer
  • Bringing non-citizens into or harbouring illegal entrants in Australia
  • Arranging a marriage to enable a person to obtain a visa, provided that it is a defence to the charge for the defendant to prove that he or she 'believed on reasonable grounds that the marriage would result in a genuine and continuing marital relationship'
  • Taking part in a marriage arranged to secure a visa
  • Making a false or misleading statement in support of a spouse application

A prosecution for an offence against the Migration Act or Regulations may be instituted at any time within five years after the commission of that offence.

Click here to contact us in confidence.

Back to top

Bottom